Johnxyz said "Adam, I disagree with your seemingly unquestioned faith in Dr Roussin just because he has a medical & law degree. I don't believe that any person, no matter how qualified, is above questions on over reach, especially in the context of Charter rights which protect citizens from government over reach.
Shouldn't the Manitoba government be obliged to be transparent on what data/studies/etc they are using to make decisions on restricting people's livelihoods?
In your opinion, how much evidence does the government need to have to impose restrictions on the guaranteed rights of citizens? I note section 1 of the charter defines the government's ability to infringe upon guaranteed rights to be that the government must establish that the benefits of a law outweighs its negative impact ie violations of a Charter right, but also, in my mind, in the context of covid lockdowns, the harm done to citizens. As well, as per the Oakes Test used by courts in assessing section 1, the government must establish that the restriction impairs the Charter right as little as possible or is “within a range of reasonably supportable alternatives".
Again, using my previous hypothetical example of a barbershop owner being possibly deprived of their livelihood by an arbitrary decision by government, I definitely think the government (and unelected "experts") need to provide an explanation and due process for those that disagree as guaranteed by section 7 of our charter, to prevent illegal attempts to restrict citizens' rights "
I'm not presuming to answer for Adam (obviously), but you piqued my curiosity, so I did a bit a reading. Specifically, about the Oakes test.
The Oakes test states the following:
1. The government must establish that the law under review has a goal that is both “pressing and substantial.” The law must be both important and necessary. Governments are usually successful in this first step.
2. The court then conducts a proportionality analysis using three sub-tests.
a. The government must first establish that the provision of the law which limits a Charter right is rationally connected to the law’s purpose. If it is arbitrary or serves no logical purpose, then it will not meet this standard.
b. Secondly, a provision must minimally impair the violated Charter right. A provision that limits a Charter right will be constitutional only if it impairs the Charter right as little as possible or is “within a range of reasonably supportable alternatives.”[4]
c. Finally, the court examines the law’s proportionate effects. Even if the government can satisfy the above steps, the effect of the provision on Charter rights may be too high a price to pay for the advantage the provision would provide in advancing the law’s purpose.
https://ualawccsprod.srv.ualberta.ca/2019/07/oakes-test/
So let's unpack that bit.
1. The government must establish that the law under review has a goal that is both “pressing and substantial.” The law must be both important and necessary. Governments are usually successful in this first step.
- I think the currently available stats speak for themselves. We're running at 150% ICU capacity and they're shutting down hospitals so staff PCH. Mortality in some sites exceeds 1 in 4. Community transmission accounts for roughly 50% of cases, with no known source. There is no question that these rules are "important and necessary".
2. The court then conducts a proportionality analysis using three sub-tests.
a. The government must first establish that the provision of the law which limits a Charter right is rationally connected to the law’s purpose. If it is arbitrary or serves no logical purpose, then it will not meet this standard.
- Again, I think the currently available information speaks for itself. Science has born out that the best way to reduce infections is to reduce contacts, ergo the rules in place have that as their purpose, with the o:bjective of reducing infection rates so that we are no longer overwhelming the health care system. The widespread community spread (about 50%) suggests that any and all manner of contact is suspect. Schools are currently open for most students, mostly because there is no data to support in-school transmission. However, in communities where there are very high community transmission and test positivity rates, schools are closed.
b. Secondly, a provision must minimally impair the violated Charter right. A provision that limits a Charter right will be constitutional only if it impairs the Charter right as little as possible or is “within a range of reasonably supportable alternatives.”
- The key phrase here is "reasonably supportable alternatives". What are the alternatives? The data out there already supports closing any and all services possible (with the exception of critical supply chains and services). In the spring the federal government provided a range of income assistance that provided some alternatives. Currently, the provincial government is providing alternative in the form of grants to keep businesses afloat. Is it enough? Probably not. But there's also fiscal accountability at play here, and if it went before the court I would suspect that the government could probably prove that sufficient alternatives were provided.
c. Finally, the court examines the law’s proportionate effects. Even if the government can satisfy the above steps, the effect of the provision on Charter rights may be too high a price to pay for the advantage the provision would provide in advancing the law’s purpose.
- This is really the only point that is debatable. Is the price too high? As someone who just yesterday lost a loved one to the overwhelmed health care system, who couldn't get timely care and subsequently died, I would say the price isn't too high. I've just deferred a medical decision for my daughter for a year because of the small chance we'd have to utilize the hospital system if things go south.
So no, in the right here and now, I don't think the price is too high. Yes, livelihoods are at risk, but what is the value of life itself?
Should the government release more of it's data to support it's decisions? Yes. It would help engender and foster goodwill and trust I think. But the information released *does* support the decisions so far, as far as the charter goes.